Core Optical Technologies, LLC v. Infinera Corp.

OPPOSITION re: MOTION to Compel the Production of Material

C.D. Cal.February 1, 2018

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DEFENDANT INFINERA’S OPPOSITION TO PLAINTIFF’S MOTION TO COMPEL RESPONSES TO PLAINTIFF’S FIRST SET OF REQUESTS FOR PRODUCTION (NOS. 1-82) QUINN EMANUEL URQUHART & SULLIVAN, LLP Kevin P.B. Johnson (Bar No. 177129) kevinjohnson@quinnemanuel.com Ray Zado (Bar No. 208501) rayzado@quinnemanuel.com 555 Twin Dolphin Drive, 5th Floor Redwood Shores, CA 94065 Telephone: (650) 801-5000 Facsimile: (650) 801-5100 QUINN EMANUEL URQUHART & SULLIVAN, LLP James R. Asperger (Bar No. 83188) jimasperger@quinnemanuel.com Sage R. Vanden Heuvel (Bar No. 294868) sagevandenheuvel@quinnemanuel.com 865 South Figueroa Street, 10th Floor Los Angeles, California 90017-2543 Telephone: (213) 443-3000 Facsimile: (213) 443-3100 ATTORNEYS FOR DEFENDANT INFINERA CORP. UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CORE OPTICAL TECHNOLOGIES, LLC, a California limited liability company, Plaintiff, vs. INFINERA CORP., a Delaware corporation, Defendant. CASE NO. 8:17-cv-00548 AG (JPRx) DEFENDANT INFINERA'S OPPOSITION TO PLAINTIFF CORE OPTICAL’S MOTION TO COMPEL THE PRODUCTION OF MATERIAL IN RESPONSE TO CORE OPTICAL’S FIRST SET OF DOCUMENT REQUESTS (NOS. 1-82) Magistrate Judge: Hon. Jean P. Rosenbluth Date: February 22, 2018 Time: 10:00 a.m. Courtroom: 690 (Roybal) Disc. Cut-off: Dkt. 28 Pre-trial Conf.: March 4, 2019 Trial Date: March 19, 2019 Case 8:17-cv-00548-AG-JPR Document 35 Filed 02/01/18 Page 1 of 24 Page ID #:570 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -i- DEFENDANT INFINERA’S OPPOSITION TO PLAINTIFF’S MOTION TO COMPEL RESPONSES TO PLAINTIFF’S FIRST SET OF REQUESTS FOR PRODUCTION (NOS. 1-82) TABLE OF CONTENTS Page PRELIMINARY STATEMENT ............................................................................... 1 FACTUAL BACKGROUND .................................................................................... 1 ARGUMENT ............................................................................................................. 7 I. CORE OPTICAL FILED ITS MOTION IN VIOLATION OF LOCAL RULE 37 AND THE COURT’S MEET AND CONFER ORDER AND IT SHOULD BE DENIED OR STRUCK ON THAT GROUND ALONE ............................................................................................................ 7 II. CORE OPTICAL’S MOTION IS PREMATURE, WITHOUT MERIT, AND SHOULD BE DENIED ....................................................................... 10 A. Infinera Has Complied with Rule 34(b)(2)(B) By Presenting a Reasonable Schedule for the Production of Documents ..................... 11 B. Infinera Complied with Rule 34(b)(2)(C) By Stating Whether Responsive Materials Were Being Withheld In Response to Its Objections ........................................................................................... 12 C. Infinera Has Not Withheld Any Documents Based on Its General Objections, So Core Optical’s Request to Waive Such Objections is Moot ................................................................................................ 14 D. Core Optical Cites No Authority That an Agreement to Search for Documents is Improper ................................................................. 17 E. Infinera’s Offers to Meet and Confer Were Not Merely Proper, But Specifically Encouraged by Rule 37 ............................................ 17 F. Infinera’s Typographical Errors in Responding to Plaintiff’s 82 Requests Do Not Justify Granting Plaintiff’s Motion ........................ 18 III. SANCTIONS SHOULD BE IMPOSED AGAINST CORE OPTICAL FOR VIOLATIONS OF LOCAL RULE 37 ................................................. 18 CONCLUSION ........................................................................................................ 20 Case 8:17-cv-00548-AG-JPR Document 35 Filed 02/01/18 Page 2 of 24 Page ID #:571 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -ii- DEFENDANT INFINERA’S OPPOSITION TO PLAINTIFF’S MOTION TO COMPEL RESPONSES TO PLAINTIFF’S FIRST SET OF REQUESTS FOR PRODUCTION (NOS. 1-82) TABLE OF AUTHORITIES Page Cases Centillium Commc'ns, Inc. v. Atl. Mut. Ins. Co., 2008 WL 728639 (N.D. Cal. Mar. 17, 2008) ................................................... 9 Christian v. Mattel, Inc., 286 F.3d 1118, 1129 (9th Cir.2002) ................................................................. 9 Contemporary Servs. Corp. v. Landmark Event Staffing Servs. Inc, 2014 WL 12707491 (C.D. Cal. June 26, 2014) ............................................... 8 Henry v. Morgan's Hotel Group, Inc., 2016 WL 303114 (S.D.N.Y. Jan. 25, 2016) ................................................... 14 Honeywell Intern. Inc. v. Audiovox Communications Corp., 2005 WL 3988905 at *2 (D. Del. Oct. 7, 2005) ............................................. 16 Korea Radio USA, Inc. v. NY Metro Radio Korea, Inc., 2009 WL 10673277 (C.D. Cal. Feb. 6, 2009) .................................................. 8 Liguori v. Hansen, 2012 WL 760747 (D. Nev. Mar. 6, 2012) .................................................. 8, 10 Long v. Landvest Corp., 2006 WL 897612 (D. Kan. Mar. 31, 2006) .................................................... 15 Merianos v. Merry Chance Indus. Ltd., 2011 WL 13214113 (C.D. Cal. Aug. 8, 2011) ................................................. 9 Moore v. Napolitano, 723 F. Supp.2d 167 (D.D.C. 2010) ................................................................ 13 Nycomed U.S. Inc.v. Glenmark Generics Ltd., 2010 U.S. Dist. LEXIS 820134 ....................................................................... 13 Reyna v. Fore Golf Mgmt., Inc., 2015 WL 881390 (C.D.Cal. Mar. 2, 2015) ...................................................... 9 Tesseron, Ltd. v. R.R. Donnelley & Sons Co., 2007 WL 2034286 (N.D. Ohio July 10, 2007) .............................................. 16 United States v. Boyce, 38 F. Supp.3d 1135, 1145 (C.D.Cal.2014) ....................................................... 9 Rules and Regulations F.R.C.P. 37 ................................................................................................................... 7 F.R.Civ.P. 26-37 .......................................................................................................... 7 Fed. R. Civ. P. 26(g)(1) ............................................................................................. 13 Case 8:17-cv-00548-AG-JPR Document 35 Filed 02/01/18 Page 3 of 24 Page ID #:572 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -iii- DEFENDANT INFINERA’S OPPOSITION TO PLAINTIFF’S MOTION TO COMPEL RESPONSES TO PLAINTIFF’S FIRST SET OF REQUESTS FOR PRODUCTION (NOS. 1-82) Fed. R. Civ. P. 34 ....................................................................................................... 14 Fed. R. Civ. P. 34(b)(1) ............................................................................................. 14 Fed. R. Civ. P. 34(b)(1)(A) ........................................................................................ 14 Fed. R. Civ. P. 34(b)(2)(B) ........................................................................................ 11 Fed. R. Civ. P. 34(b)(2)(C) ........................................................................................ 18 Fed. R. Civ. P. 37(a)(1) ................................................................................................ 1 Fed. R. Civ. P. 37(a)(5)(B) ........................................................................................ 19 Local Rule 11-6 ........................................................................................................... 5 Local Rule 37 ...................................................................................................... passim Local Rule 37-1 .................................................................................................. passim Local Rule 37-2 ..................................................................................................... 5, 19 Local Rule 37-4 ..................................................................................................... 9, 19 Local Rule 83–7 ..................................................................................................... 9, 19 Moore’s Federal Practice § 33.171 ............................................................................ 16 Case 8:17-cv-00548-AG-JPR Document 35 Filed 02/01/18 Page 4 of 24 Page ID #:573 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -1- DEFENDANT INFINERA’S OPPOSITION TO PLAINTIFF’S MOTION TO COMPEL RESPONSES TO PLAINTIFF’S FIRST SET OF REQUESTS FOR PRODUCTION (NOS. 1-82) Preliminary Statement Plaintiff Core Optical’s motion to compel production of documents is a premature, meritless motion designed solely to annoy, harass, and burden Defendant Infinera. On January 5, 2018, Infinera sent Plaintiff a 12-page letter addressing Plaintiff’s concerns regarding Infinera’s document production and objections to certain requests—concerns that Plaintiff has simply repeated in this Motion. Infinera also agreed to concessions on certain categories of documents, repeatedly offered to meet and confer in good faith to resolve the parties disputes, and set forth a proposed document production schedule. On January 22, 2018, Infinera made its second production of documents as part of a rolling production, and on January 31 made a third such production. Plaintiff never responded to Infinera’s January 5 letter, nor did it voice any concerns regarding Infinera’s document production efforts. Instead, Plaintiff filed this Motion in disregard of the letter and spirit of the Federal and Local Rules. Plaintiff simply abandoned the good faith meet and confer process required by Rule 37(a)(1) of the Federal Rules of Civil Procedure, and sidestepped the discovery dispute resolution procedures required by Local Rule 37 and ¶ 1.3 of this Court’s Scheduling Order Specifying Procedures (Dkt. 25) (“The parties are ordered to strictly comply with the requirements of all Local Rules at Local Rule 37 et seq. in preparing and filing Discovery Motions.”) (emphasis in original). Plaintiff’s race to file a motion without first engaging in good faith negotiations with Infinera should not be rewarded. Plaintiff’s brief should be struck, its motion should be denied, sanctions should be imposed for Plaintiff’s violation of the Local Rules, and the Court should order that the parties resume a good faith meet and confer process to resolve their disputes. Factual Background On November 6, 2017, Plaintiff served Defendant Infinera with its First Set of Requests for Production. Infinera served its Responses on December 6, 2017, preserving its objections as permitted by the Federal Rules, but nonetheless agreeing Case 8:17-cv-00548-AG-JPR Document 35 Filed 02/01/18 Page 5 of 24 Page ID #:574 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -2- DEFENDANT INFINERA’S OPPOSITION TO PLAINTIFF’S MOTION TO COMPEL RESPONSES TO PLAINTIFF’S FIRST SET OF REQUESTS FOR PRODUCTION (NOS. 1-82) to produce document in response to 71 of the 82 requests, offering to meet and confer on four requests, and agreeing to conduct a search for responsive documents in response to seven requests. (Zado Decl. ¶3; Dkt. 34-2). During this same time, Infinera also responded to Plaintiff’s First Set of Interrogatories. (Zado Decl. ¶ 2). On December 19, 2017, Plaintiff’s counsel emailed Defendant Infinera’s counsel two lengthy letters: (i) a 67-page letter objecting to Defendant’s Responses and Objections to Plaintiff’s First Set of Interrogatories (Nos. 1-8) (“Interrogatory Letter”) (Dkt. 31-3) and (ii) a 13-page letter objecting to Defendant’s Responses to Plaintiff’s First Set of Requests for Production (Nos. 1-82) (“RFP Letter”) (Dkt. 34-3). Far from initiating a good faith meet and confer dialogue, both of these letters made clear that Plaintiff already intended to file motions to compel: Therefore, please advise as to your availability to conduct a Central District of California Local Rule 37-1 pre-filing conference concerning Core Optical’s intended motion: (1) to strike Defendant's improper objections; (2) to compel full and complete, non-evasive responses to each of Core Optical's requests; (3) to compel immediate production of responsive documents and any privilege log; and (4) to preclude Defendant from using any responsive documents at trial, or in connection with any motion or hearing, that are (or were at any time since the filing of the Complaint) in Defendant's possession, custody, and/or control and that continue to be improperly withheld. Core Optical may also seek monetary and other evidentiary sanctions. RFP Letter at 1. (Dkt 34-3) (emphasis added). Therefore, please advise as to your availability to conduct a Central District of California Local Rule 37-1 pre-filing conference concerning Core Optical’s intended motion: (1) to strike Defendant's improper objections; (2) to compel full and complete, non-evasive responses to each of Core Optical's interrogatories (without invocation of Rule 33(d)); (3) to compel production of the required verification for each of Defendant's “responses” by a corporate officer or director, executed under oath; and (4) to preclude Defendant from using any responsive information at trial, or in connection with any motion or hearing, that is (or was at any time since the filing of suit) available to Defendant and that continues to be improperly withheld. Core Optical may also seek monetary and other evidentiary sanctions. Case 8:17-cv-00548-AG-JPR Document 35 Filed 02/01/18 Page 6 of 24 Page ID #:575 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -3- DEFENDANT INFINERA’S OPPOSITION TO PLAINTIFF’S MOTION TO COMPEL RESPONSES TO PLAINTIFF’S FIRST SET OF REQUESTS FOR PRODUCTION (NOS. 1-82) Interrogatory Letter at 1. (Dkt. 31-3) (emphasis added). Plaintiff served its unnecessarily burdensome letters in the middle of the end of year holidays , while Infinera was shut down and the relevant counsel for Infinera on holiday. (Zado Decl. ¶ 5). As a result, Infinera’s counsel responded to these letters on January 3, 2018. (Zado Decl. ¶ 6, Dkt. 31-5). On January 4, 2018, Infinera’s counsel wrote to Plaintiff, stating that Infinera intended to (i) respond to the December 19 letters by the following day, (ii) make several document productions over the coming weeks, and (iii) supplement its interrogatory responses. (Zado Decl. ¶ 7; Dkt. 31-6). Plaintiff never responded to this email, and, in particular, to Infinera’s explicit agreement to make a series of document productions in view of Plaintiff’s letter. (Zado Decl. ¶ 7.) Within 36 hours of its January 4 letter, Infinera sent Plaintiff a twelve page, detailed response letter addressing each and every issue raised in Plaintiff’s December 19 RFP Letter (“January 5 Letter”) (Dkt. 34-7). In the January 5 Letter, Infinera objected to Plaintiff’s threats to file a motion to compel in violation of Local Rule 37- 1’s requirement that the parties “confer in a good faith effort to eliminate the necessity for hearing the motion or to eliminate as many of the disputes as possible.” (Dkt. 34-7 at 1-2). Infinera also disagreed with Plaintiff’s assertions that Defendant’s General and Specific Objections were improper, and set forth clear explanations for Infinera’s various objections, including citations to relevant authority. (Dkt. 34-7 at 2-10). Moreover, the letter offered—repeatedly—to meet and confer in order to resolve the parties’ discovery disputes. • “[W]e also intend to negotiate in good faith and attempt to resolve the scope of any discovery disputes the parties may have.” (Id. at 2). • “Infinera submits that the parties should meet and confer to discuss the appropriate scope of the limitations on the parties’ obligations to log documents and the timing of the exchange of privilege logs.” (Id.) • “Infinera is willing to meet and confer to discuss the scope of those particular products.” (Id. at 5). Case 8:17-cv-00548-AG-JPR Document 35 Filed 02/01/18 Page 7 of 24 Page ID #:576 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -4- DEFENDANT INFINERA’S OPPOSITION TO PLAINTIFF’S MOTION TO COMPEL RESPONSES TO PLAINTIFF’S FIRST SET OF REQUESTS FOR PRODUCTION (NOS. 1-82) • “Infinera is willing to meet and confer to discuss the scope of the products on which Core Optical is seeking discovery.” (Id. at 11). • “Infinera is further available to meet and confer next week regarding Request Nos. 16, 25, 63, and 64, as well as the scope of products for which discovery is appropriate in this case.” (Id. at 12). The January 5 Letter addressed the same objection-based issues in Plaintiff’s December 19 RFP Letter and this Motion. For example, the letter: • Pointed out that Core Optical’s letter violated Rule 37’s requirement of a good faith meet and confer process. (Id. at 1-2). • Specifically addressed each of Plaintiff’s concerns regarding Infinera’s General Objections, Objections to Definitions, and Objections to Instructions, which Plaintiff has purposely ignored for purposes of this Motion. (Id. at 2-9). • Refuted Plaintiff’s allegations that Infinera’s Specific Objections were improper. (Id. at 9-10). • Provided argument and case law showing that Plaintiff’s claim that Infinera’s discovery responses were “evasive” was without merit (Id. at 10). Core Optical never responded to Infinera’s January 5 letter, either to accept Infinera’s offers to meet and confer the next week, or to seek further clarity on the timing or scope of Infinera’s document production. (Zado Decl. ¶ 12). On January 20, 2018, Core Optical filed its 80-page Motion to Compel Responses to Interrogatories Nos. 1-8. (Dkt. 30). On January 22, 2018, Infinera made its second production of documents, producing 1,500 pages (which combined the two productions referenced in the January 5 letter into a single production. (Zado Decl. ¶ 17, Ex. 2). On January 31, also in accordance with the January 31 letter, Infinera produced an additional 30,000 highly confidential technical documents. (Zado Decl. ¶ 19, Ex. 3). Plaintiff did not express any concerns with the timing or content of Infinera’s production following the January 5 letter prior to filing its motion to compel, despite the fact that the parties had in fact met and conferred on other issues Case 8:17-cv-00548-AG-JPR Document 35 Filed 02/01/18 Page 8 of 24 Page ID #:577 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -5- DEFENDANT INFINERA’S OPPOSITION TO PLAINTIFF’S MOTION TO COMPEL RESPONSES TO PLAINTIFF’S FIRST SET OF REQUESTS FOR PRODUCTION (NOS. 1-82) in the interim. (Zado Decl. ¶ 18). Nor did Plaintiff send Infinera a joint stipulation, as required by Local Rule 37-2. (Id. ¶ 12). Notably, on January 17, 2018, the parties met and conferred to discuss issues pertaining to the parties respective claim construction disclosures. (Zado Decl. ¶ 10). Despite Plaintiff’s apparent intent to file a motion to compel, Plaintiff’s counsel failed to bring up or note any discovery issues between the parties, to discuss topics on which Infinera had explicitly agreed to meet and confer, or even to provide a courtesy notice that multiple motions to compel were apparently in the works. (Id. ¶ 11). Infinera’s counsel wrote to Plaintiff’s counsel on January 23, 2018, objecting to Plaintiff’s improper motion to compel interrogatory responses and again requesting a meet and confer. (Zado Decl. ¶ 14, Ex. 1 at 4-5). Plaintiff once again did not respond. (Zado Decl. ¶ 14). Infinera wrote another email on January 24, 2018, repeating its request for a meet and confer. (Zado Decl. ¶14, Ex. 1 at 4). Plaintiff finally responded on January 25, asserting without basis that Infinera had failed to meet and confer pursuant to Local Rule 37-1, and that this justified Plaintiff’s failure to file a joint stipulation pursuant to Local Rule 37-2. (Zado Decl., Ex. 1 at 3). Plaintiff also argued, again without basis, that the 25-page limit of Local Rule 11-6 did not apply to its 80-page motion. (Id.) That evening, and without any prior warning, Plaintiff filed its Motion to Compel the Production of Material in Response to Document Request Nos. 1-82. (Dkt. 32-33; Zado Decl. ¶ 15). Infinera’s counsel wrote to Plaintiff on January 26, 2018, again stating that Plaintiff was in violation of the Local Rules, particularly given the multiple and repeated offers to meet and confer to which Plaintiff had failed to respond. (Zado Decl. ¶ 16, Ex. 1 at 1-2). Infinera’s counsel also requested that Plaintiff withdraw its motions and resume the meet and confer process. (Id.).1 As of 1 While Defendant’s January 26, 2018 email stated an intention to file an ex parte motion to strike (Zado Decl., Ex. 1 at 2), Defendant has chosen to request such relief in its opposition in order to avoid further burdening the Court. Case 8:17-cv-00548-AG-JPR Document 35 Filed 02/01/18 Page 9 of 24 Page ID #:578 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -6- DEFENDANT INFINERA’S OPPOSITION TO PLAINTIFF’S MOTION TO COMPEL RESPONSES TO PLAINTIFF’S FIRST SET OF REQUESTS FOR PRODUCTION (NOS. 1-82) the filing of this opposition, Plaintiff has still not responded. (Zado Decl.¶ 16). On January 31, 2018, Infinera made its third production of documents. (Zado Decl., Ex. ¶ 19). Preferring to burden the Court rather than negotiate in good faith on any discovery disputes, and apparently ignoring Infinera’s agreement to supplement its discovery, Plaintiff has rejected Infinera’s multiple invitations to meet and confer and resolve any issues between the parties. Had Plaintiff accepted Infinera’s offer to both meet and confer and supplement its discovery, the parties could have agreed on timelines and scope document discovery, resolved any miscommunication regarding discovery issues, and avoided burdening the Court with pointless motion practice. Moreover, had Plaintiff even submitted its joint portion of a discovery stipulation in accordance with Rule 37, the parties could at least have significantly narrowed the scope of issues to be presented to the Court’s attention. Plaintiff elected to do neither, despite the fact that the parties in fact met and conferred on other issues prior to Plaintiff filing its motion. Case 8:17-cv-00548-AG-JPR Document 35 Filed 02/01/18 Page 10 of 24 Page ID #:579 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -7- DEFENDANT INFINERA’S OPPOSITION TO PLAINTIFF’S MOTION TO COMPEL RESPONSES TO PLAINTIFF’S FIRST SET OF REQUESTS FOR PRODUCTION (NOS. 1-82) Argument I. CORE OPTICAL FILED ITS MOTION IN VIOLATION OF LOCAL RULE 37 AND THE COURT’S MEET AND CONFER ORDER AND IT SHOULD BE DENIED OR STRUCK ON THAT GROUND ALONE Plaintiff’s failure to exercise good faith in discovery and violation of the rules requires denial or striking of this motion. Local Rule 37 and the Federal Rules are clear regarding the obligation on parties to settle their discovery disputes through a good faith meet and confer process, followed by a joint stipulation if the parties cannot reach agreement: • “Prior to the filing of any motion relating to discovery pursuant to F.R.Civ.P. 26-37, counsel for the parties shall confer in a good faith effort to eliminate the necessity for hearing the motion or to eliminate as many of the disputes as possible. It shall be the responsibility of counsel for the moving party to arrange for this conference.” L.R. 37-1. • “If counsel are unable to settle their differences, they shall formulate a written stipulation, unless otherwise ordered by the Court.” L.R. 37-2. • “Following the conference of counsel, counsel for the moving party shall personally deliver, e-mail, or fax to counsel for the opposing party the moving party’s portion of the stipulation, together with all declarations and exhibits to be offered in support of the moving party’s position.” L.R. 37-2.2. • “The Court will not consider any discovery motion in the absence of a joint stipulation or a declaration from counsel for the moving party establishing that opposing counsel (a) failed to confer in a timely manner in accordance with L.R. 37-1; (b) failed to provide the opposing party’s portion of the joint stipulation in a timely manner in accordance with L.R. 37-2.2; or (c) refused to sign and return the joint stipulation after the opposing party’s portion was added.” L.R. 37-2.4. • “The motion must include a certification that the movant has in good faith conferred or attempted to confer with the person or party failing to make disclosure or discovery in an effort to obtain it without court action.” F.R.C.P. 37. Case 8:17-cv-00548-AG-JPR Document 35 Filed 02/01/18 Page 11 of 24 Page ID #:580 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -8- DEFENDANT INFINERA’S OPPOSITION TO PLAINTIFF’S MOTION TO COMPEL RESPONSES TO PLAINTIFF’S FIRST SET OF REQUESTS FOR PRODUCTION (NOS. 1-82) Plaintiff clearly had no intention of following either the letter or the spirit of Local Rule 37 or Federal Rule 37, despite this Court’s order that “[t]he parties are ordered to strictly comply with the requirements of all Local Rules at Local Rule 37 et seq. in preparing and filing Discovery Motions.” (Dkt. 25, ¶ 1.3). “Whether a party has satisfied this requirement [to confer in good faith] is a factual determination to be made by the magistrate judge.” Contemporary Servs. Corp. v. Landmark Event Staffing Servs. Inc, 2014 WL 12707491, at *2 (C.D. Cal. June 26, 2014). Plaintiff’s December 19 RFP Letter did not seek a good faith meet and confer process. Instead the letter stated bluntly that Plaintiff “intended” to file a motion to compel, intended to seek monetary and evidentiary sanctions, and wanted to preclude Defendant from using any evidence at trial that have been withheld. (Dkt. 34-3 at 2). Plaintiff’s letter even refused Infinera’s previously made offers to meet and confer on the scope of Plaintiff’s overbroad requests as set forth in Infinera’s December 6 Responses, writing “[t]hese responses [offering to meet and confer] are improper” and again demanding further responses. (Dkt. 34-3 at 14). This was a demand letter, not a good faith invitation to meet and confer. See Liguori v. Hansen, 2012 WL 760747, at *10 (D. Nev. Mar. 6, 2012) (using “terse demand letters setting forth ultimatums” and “perceived leverage in an effort to extract concessions rather than resolve disputes” violates Rule 37). Courts in this district expect parties to diligently engage in the meet and confer process, rather than rush to court with a motion to compel. See, e.g., Contemporary Services Corporation v. Landmark Event Staffing Services Inc., 2014 WL 12707491 at * 2 (C.D. Cal. June 26, 2014) (noting that Local Rule 37-1 requires that the parties “confer in a good faith effort to eliminate the necessity for hearing the motion or to eliminate as many of the disputes as possible.”). For example, courts in this district have issued an order to show cause why sanctions should not be issued where the defendant filed a motion to compel instead of a joint stipulation because plaintiff’s portion of the joint stipulation was a day late. Korea Radio USA, Inc. v. NY Metro Case 8:17-cv-00548-AG-JPR Document 35 Filed 02/01/18 Page 12 of 24 Page ID #:581 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -9- DEFENDANT INFINERA’S OPPOSITION TO PLAINTIFF’S MOTION TO COMPEL RESPONSES TO PLAINTIFF’S FIRST SET OF REQUESTS FOR PRODUCTION (NOS. 1-82) Radio Korea, Inc., 2009 WL 10673277, at *2 (C.D. Cal. Feb. 6, 2009) (“The Court finds that although [the moving party] may have technically complied with Local Rule 37, it has not complied with its spirit or intent. Counsel for the parties apparently do not understand the purpose of Local Rule 37, which is to assist the Court in addressing discovery disputes quickly and inexpensively.”); see also Merianos v. Merry Chance Indus. Ltd., 2011 WL 13214113, at *2 (C.D. Cal. Aug. 8, 2011) (“[P]laintiff's counsel had an obligation to again meet-and-confer with defendant's counsel and attempt in ‘good faith ... to eliminate the necessity for hearing the motion or to eliminate as many of the disputes as possible.’ Local Rule 37–1. Yet, instead of doing so, plaintiff's counsel blind-sided defendant's counsel with the Joint Stipulation.”) (denying motion to compel for failure to comply with Local Rule 37). Under Local Rule 83–7, the Court may impose a sanction for violating a local rule that is appropriate under the circumstances. This can include striking the whole brief. See Reyna v. Fore Golf Mgmt., Inc., 2015 WL 881390, at *2 (C.D.Cal. Mar. 2, 2015) (noting that a court has discretion to strike documents for failure to comply with the local rules); United States v. Boyce, 38 F. Supp.3d 1135, 1145 (C.D.Cal.2014) (same); Centillium Commc'ns, Inc. v. Atl. Mut. Ins. Co., 2008 WL 728639, at *6 (N.D. Cal. Mar. 17, 2008) (striking a party's motion for failure to follow court's order mandating meet and confer prior to filing); see also Christian v. Mattel, Inc., 286 F.3d 1118, 1129 (9th Cir.2002) (“The district court has considerable latitude in managing the parties' motion practice and enforcing local rules that place parameters on briefing.”). Local Rule 37-4 also permits sanctions for violations of Local Rule 37. The Court should deny and/or strike Core Optical’s motion for failure to abide by the Local Rules and this Court’s orders, and should issue appropriate sanctions. Plaintiff contends that Infinera failed to participate in a Local Rule 37-1 conference and failed to timely produce documents. (Dkt. 33 at 1, 3). These contentions are false or misleading. First, Plaintiff is the one who refused to meet and confer in good faith despite Infinera’s multiple offers to do so, both before and after Case 8:17-cv-00548-AG-JPR Document 35 Filed 02/01/18 Page 13 of 24 Page ID #:582 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -10- DEFENDANT INFINERA’S OPPOSITION TO PLAINTIFF’S MOTION TO COMPEL RESPONSES TO PLAINTIFF’S FIRST SET OF REQUESTS FOR PRODUCTION (NOS. 1-82) this motion was filed. “A good faith attempt requires more than the perfunctory parroting of statutory language, it requires a genuine attempt to resolve the discovery dispute through non judicial means.” Liguori, 2012 WL 760747, at *10 (internal quotation marks and citations omitted). In its Responses to Plaintiff’s Requests for Production, Defendant offered to meet and confer regarding four of the requests. Defendant rejected these offers in its December 19 RFP Letter. (Dkt. 34-3 at 14). On January 5, 2018, Infinera again offered to “negotiate in good faith and attempt to resolve the scope of any discovery disputes the parties may have.” (Dkt. 34-7 at 2). Plaintiff did not respond to this offer, but instead went radio silent for over two weeks before blindsiding Infinera with this motion to compel. (Zado Decl. ¶ 15). Second, while Infinera is still in the process of producing documents—delayed in part because it is now preoccupied with responding to two motions to compel— Plaintiff never so much as emailed or called after Infinera’s communications of January 3, 4 and 5 to either follow up on or take issue with the status of Defendant’s document production. (Zado Decl. ¶ 12). Had Plaintiff taken Infinera up on the repeated offers to meet and confer, any issues regarding Infinera’s document production could have been addressed. Third, the parties met and conferred on other issues between Infinera’s January 3-5 communications, and Plaintiff’s filing of its motions to compel. (Zado Decl. ¶¶ 10-11, Ex. 1 at 6-7). However, counsel for Plaintiff failed to even mention that any outstanding issues relating to any discovery disputes were pending, or that it was intending to file motions to compel. (Id.). II. CORE OPTICAL’S MOTION IS PREMATURE, WITHOUT MERIT, AND SHOULD BE DENIED Core Optical’s motion—like the December 19 demand letter it was based on— is designed to burden, annoy, and harass Infinera. Plaintiff’s motion is dedicated almost entirely to searching for flaws in Defendant’s responses and objections, rather than establishing that any responsive documents are being withheld. This is not Case 8:17-cv-00548-AG-JPR Document 35 Filed 02/01/18 Page 14 of 24 Page ID #:583 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -11- DEFENDANT INFINERA’S OPPOSITION TO PLAINTIFF’S MOTION TO COMPEL RESPONSES TO PLAINTIFF’S FIRST SET OF REQUESTS FOR PRODUCTION (NOS. 1-82) surprising, since Infinera agreed to produce documents in response to 71 of the 82 requests, agreed to meet and confer for an additional four requests, agreed to conduct a search for the remaining seven requests, and made a production in accordance with it January 5 letter just three days prior to Core Optical’s filing. Core Optical’s motion should be denied on the merits, as Plaintiff has failed to establish that Infinera’s objections or responses were improper. A. Infinera Has Complied with Rule 34(b)(2)(B) By Presenting a Reasonable Schedule for the Production of Documents In its Motion, Plaintiff argues that Infinera violated Rule 34(b)(2)(B) by failing to “specify any date by which it would complete its production of documents.” (Mot. at 3-4). The Rule states that a document production must be “completed no later than the time for inspection specified in the request or another reasonable time specified in the response.” Fed. R. Civ. P. 34(b)(2)(B). In its Responses, Infinera specifically objected to Plaintiff’s proposed inspection date of December 6, 2017, and instead stated that Infinera would make its productions “at a mutually agreeable time and place.” (Dkt. 34-2 at 9-10). Of course, Plaintiff never engaged in a good faith meet and confer process, so it did not confer with Infinera regarding a “mutually agreeable time” to complete its document production. Instead, in its December 19, 2018 letter, Plaintiff ignored Infinera’s offer and stated that all documents should have been produced by December 6, 2017. (Dkt. 34-3 at 11-12). On January 4 and 5, 2018, Infinera stated that it intended to make several document productions in the following weeks. (Dkt 34-6 at 1, Dkt. 34-7 at 12). Specifically, the January 5 letter stated “Infinera intends to make two additional productions within the next 14 days of this letter, and a third production on or around February 5, 2018, which will include documents responsive to the substantial majority of Core Optical's requests.” (Dkt. 34-7 at 12). Plaintiff never objected to this proposed document production schedule or indicated that such a schedule was unreasonable. Nor has Plaintiff objected to the timing of Infinera’s continuing Case 8:17-cv-00548-AG-JPR Document 35 Filed 02/01/18 Page 15 of 24 Page ID #:584 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -12- DEFENDANT INFINERA’S OPPOSITION TO PLAINTIFF’S MOTION TO COMPEL RESPONSES TO PLAINTIFF’S FIRST SET OF REQUESTS FOR PRODUCTION (NOS. 1-82) document production, which has included a production on January 22 of 1,500 documents and a production on January 31 of over 30,000 documents. Plaintiff’s demands for a court order that “Defendant … complete its document production immediately” and be precluded “from introducing at trial, or in connection with any motion or hearing, any responsive material that it continues to withhold after February 6, 2018” (Mot. at 4) are not based on any cited authority. The Rule permits Infinera to establish a “reasonable” time for the completion of its document production; Infinera attempted to open a dialogue with Plaintiff on a mutually agreeable time and place for Defendant’s document production, but received only an ultimatum and this Motion to Compel in response. Plaintiff’s request for relief based on Rule 34(b)(2)(B) should be denied. B. Infinera Complied with Rule 34(b)(2)(C) By Stating Whether Responsive Materials Were Being Withheld In Response to Its Objections Plaintiff again misstates the Federal Rules of Civil Procedures and mischaracterizes Infinera’s responses by alleging that Infinera violated Rule 34(b)(2)(C). According to Plaintiff, Infinera failed to state whether responsive materials were being withheld on the basis of its objections. (Mot. at 4-6). Rule 34(b)(2)(C) states that “[a]n objection must state whether any responsive materials are being withheld on the basis of that objection.” But a closer review of the Rule shows that Plaintiff’s argument is baseless, and Infinera has fully complied. As stated in the Advisory Committee Notes: The producing party does not need to provide a detailed description or log of all documents withheld, but does need to alert other parties to the fact that documents have been withheld and thereby facilitate an informed discussion of the objection. An objection that states the limits that have controlled the search for responsive and relevant materials qualifies as a statement that the materials have been “withheld.” (emphasis added). Plaintiff conveniently omitted the second sentence out of their brief, for obvious reasons. The Rule does not require Infinera to produce a log of all Case 8:17-cv-00548-AG-JPR Document 35 Filed 02/01/18 Page 16 of 24 Page ID #:585 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -13- DEFENDANT INFINERA’S OPPOSITION TO PLAINTIFF’S MOTION TO COMPEL RESPONSES TO PLAINTIFF’S FIRST SET OF REQUESTS FOR PRODUCTION (NOS. 1-82) documents withheld, nor does it require an affirmative statement each time documents are or are not withheld—a standard that simply could not be met before documents are collected and reviewed. Instead, specific objections that state “the limits that have controlled the search for responsive and relevant materials” is sufficient. Infinera’s Specific Objections indicated where it intended to limit its searches for responsive materials, including by asserting privilege objections and objecting to overly broad and ambiguous requests that lacked the “reasonable particularity” required by Rule 34(b)(1)(A). (See, e.g., Dkt. 34-2, Responses Nos. 1-5, 8, 10, 11). Had Plaintiff simply reviewed the scope of Infinera's Specific Objections, rather than declare them all invalid and improper, it would be on alert as to which types of documents might be withheld, and could thereby discuss the objections through a good faith meet and confer process. (See, e.g., Dkt. 34-2, Response Nos. 10-41, 43- 44, 47-49). Plaintiff’s argument further ignores the specific instances where Infinera identified that it was willing to meet and confer regarding the scope of the Requests. (Dkt. 34-2, Response Nos. 16, 25, 63-64). It also ignores the Responses where Infinera explicitly did not state it would be producing documents responsive to the request, but instead would conduct a search for responsive documents. (Dkt. 34-2, Response Nos. 42, 55-58, 60, 62). Plaintiff also objects to Infinera’s statements that it will produce documents pursuant to a “reasonable search.” (Mot. at n. 6). This again demonstrates the extremity of Plaintiff’s positions, as Infinera’s responses conform with the Federal Rules. See, e.g., Fed. R. Civ. P. 26(g)(1); Adv. Cmt. Comment (the “reasonable inquiry” requirement is met where the investigation undertaken is “reasonable under the circumstances”; it is an “objective standard similar to the one imposed by Rule 11”); Moore v. Napolitano, 723 F. Supp.2d 167, 173 (D.D.C. 2010) (party obligated to make a “reasonable search”); Nycomed U.S. Inc.v. Glenmark Generics Ltd., 2010 U.S. Case 8:17-cv-00548-AG-JPR Document 35 Filed 02/01/18 Page 17 of 24 Page ID #:586 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -14- DEFENDANT INFINERA’S OPPOSITION TO PLAINTIFF’S MOTION TO COMPEL RESPONSES TO PLAINTIFF’S FIRST SET OF REQUESTS FOR PRODUCTION (NOS. 1-82) Dist. LEXIS 820134, at *9 (litigants have obligation to “make reasonable efforts to locate responsive documents”). Defendant has reason to limit itself to a “reasonable search.” Plaintiff’s requests, which call for “all documents” on various topics, are plainly improper under Fed. R. Civ. P. 34. See, e.g., Henry v. Morgan's Hotel Group, Inc., 2016 WL 303114, at *2 (S.D.N.Y. Jan. 25, 2016) (collecting cases and finding that a request for any and all documents “are plainly overbroad and impermissible”). Rather, Core Optical was required to specifically “describe with reasonable particularity” the information that is being requested, which Core Optical's requests fail to do. Fed. R. Civ. P. 34(b)(1). By failing to appropriately limit the scope of its requests, it is Core Optical that in fact has violated Fed. R. Civ. P. 34(b)(1)(A). To the extent Plaintiff is suggesting that Infinera is refusing to properly search for responsive documents, this allegation is without any basis in fact or law. Plaintiff makes the baseless claim that Infinera “refus[ed] to even meet and confer on this issue.” First, Infinera addressed this issue in its January 5, 2018 letter. (Dkt. 34-7 at 9-12). Second, Plaintiff never responded to Infinera’s multiple requests to meet and confer as set forth in the body of various Responses to Plaintiff’s document requests, nor did it respond to Infinera’s no less than five references to meeting and conferring the second week of January as set forth in its January 5 letter. Instead, Plaintiff bypassed the Federal and Local Rules and rushed to motion practice. Its request for relief based on Rule 34(b)(2)(C) should be denied. C. Infinera Has Not Withheld Any Documents Based on Its General Objections, So Core Optical’s Request to Waive Such Objections is Moot Plaintiff argues that Infinera has violated Rule 34(b)(2)(B) by failing to state its objections with specificity, and that therefore all of Infinera’s General Objections should be waived. (Mot. at 6-8). This argument is both meritless and moot. As a threshold matter, Infinera has not withheld any documents based on General Case 8:17-cv-00548-AG-JPR Document 35 Filed 02/01/18 Page 18 of 24 Page ID #:587 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -15- DEFENDANT INFINERA’S OPPOSITION TO PLAINTIFF’S MOTION TO COMPEL RESPONSES TO PLAINTIFF’S FIRST SET OF REQUESTS FOR PRODUCTION (NOS. 1-82) Objections Nos. 9-15 or 17-26 standing alone.2 Therefore, Plaintiff’s argument is almost entirely mooted. See Long v. Landvest Corp., 2006 WL 897612, at *3 (D. Kan. Mar. 31, 2006) Plaintiff seeks to have all of the General Objections waived, yet it only specifies a handful of them in its Motion. (Mot. at 7:12-28). In fact, many of Infinera’s General Objections state with specificity the grounds for objecting. (Dkt. 34-2 at 5-6) (“Infinera further objects to the definition of the terms ‘Infinera,’ ‘You,’ or ‘Your’ as vague, overbroad, and unduly burdensome, and as calling for information not within the possession, custody or control of Infinera to the extent that it refers to “any and all” of its “past or present parents, predecessors, successors, subsidiaries, affiliates, assignees, joint venture partners, principals, directors, representatives, agents, consultants, experts, or other persons appearing or purporting to act on their behalf.” Infinera therefore defines ‘You’, ‘Your,’ and/or ‘Infinera,’ for purposes of these Responses to include Infinera and its officers, employees, and attorneys..”). Moreover, Plaintiff mischaracterizes Infinera’s objection to definitions and instructions as “General Objections. These Objections, stated with particularity, address Plaintiff’s improper definitions and instructions in the same way they were set forth in Plaintiff’s Requests, in a single section prior to the Requests. Compare Dkt. 34-1 at 1-7 with Dkt. 34-2 at 6-9; sSee, e.g., Dkt. 34-2 at 7 (“Infinera further objects to the definition of the term ‘communication’ as vague and overbroad, including to the extent it is defined in terms of ‘ideas, opinions, thoughts, or otherwise.’”). Indeed, Plaintiff’s position seems to be that it is free to set forth Definitions and Instructions in one location (i.e., not in the context of any individual document request), but that Infinera must repeat for each individual response its 2 With respect to General Objection No. 16, this objection is (i) specific to the contentions served by Plaintiff in this case, (ii) grounded in case law relating to the appropriate scope of discovery of products in view of a Plaintiff’s Infringement Contentions, and (iii) interrelated with Infinera’s objections to the definition of “Dual Polarization Products,” as discussed below. Case 8:17-cv-00548-AG-JPR Document 35 Filed 02/01/18 Page 19 of 24 Page ID #:588 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -16- DEFENDANT INFINERA’S OPPOSITION TO PLAINTIFF’S MOTION TO COMPEL RESPONSES TO PLAINTIFF’S FIRST SET OF REQUESTS FOR PRODUCTION (NOS. 1-82) objections thereto. Plaintiff cites no authority for this proposition, which not only would be manifestly unfair, but an unnecessary burden on a responding party. Moreover, Plaintiff completely disregards Infinera’s January 5 Letter, which devoted a full eight pages to addressing in detail Plaintiff’s concerns and misunderstanding regarding the General Objections, Objections to Definitions, and Objections to Instructions. (Dkt. 34-7 at 2-9). Infinera went through nearly all of these objections, refuting Plaintiff’s arguments that they were vague or improper. (Id.) For example, Infinera pointed out that Plaintiff’s definition of “Dual Polarization Product” would call for information about products that have nothing to do with “dual polarization” or any of the issues in this case, and would call for production of documents regarding any product ever manufactured by Infinera, as well any individual “component” within any such product, which requests at their literal scope would encompass millions of pages of irrelevant information. (Dkt 34-7 at 11). Plaintiff’s attempt to sweep such a broad scope of discovery on products not identified in Core Optical’s infringement contentions is contrary to law. See, e.g., Honeywell Intern. Inc. v. Audiovox Communications Corp., 2005 WL 3988905 at *2 (D. Del. Oct. 7, 2005) (denying discovery into products not at issue in lawsuit); Tesseron, Ltd. v. R.R. Donnelley & Sons Co., 2007 WL 2034286 (N.D. Ohio July 10, 2007) (same). Thus, Infinera’s objection to this definition (which is not a “general” objection, as Plaintiff mistakenly asserts) was entirely proper. (Dkt. 34-2 at 7-8). In its January 5 Letter, Infinera also pointed out that contrary to Plaintiff’s assertions, “general objections are not de facto improper” (Dkt. 34-7 at 3) (citing Moore’s Federal Practice § 33.171), and asked Plaintiff to present any authority that Rule 34(b)(2)(B) is a waiver provision. Based on its Motion, which only cites Case 8:17-cv-00548-AG-JPR Document 35 Filed 02/01/18 Page 20 of 24 Page ID #:589 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -17- DEFENDANT INFINERA’S OPPOSITION TO PLAINTIFF’S MOTION TO COMPEL RESPONSES TO PLAINTIFF’S FIRST SET OF REQUESTS FOR PRODUCTION (NOS. 1-82) inapposite cases concerning interrogatories and not involving waiver (Mot. at 7), Plaintiff has not found such authority, and its argument should be disregarded.3 D. Core Optical Cites No Authority That an Agreement to Search for Documents is Improper In its Responses to Request Nos. 42, 55-58, 60, and 62, Infinera agreed to conduct a search for any “responsive, non-privileged documents” but did not state that there would necessarily be a production of documents. (Dkt. 34-2). This was simply because, at the time of its response, Infinera had not located, or did not have a reason to believe, that responsive documents to those requests existed. For a subset of these, Infinera further stated that “it is not aware of any such non-privileged documents responsive to this Request.” (Dkt. 23-2, Response Nos. 55-57). Plaintiff has argued that these Responses are improper, as they do not inform Plaintiff as to whether such documents will be produced and/or withheld. (Mot. at 8-9). But Infinera addressed this issue in its January 5 Letter: “Infinera's specific objections … make clear instances where Infinera was not producing documents . . . . ” (Dkt. 34-7 at 10). Thus, Plaintiff should not be confused. Plaintiff has cited no authority holding that Infinera’s responses to these Requests are improper. E. Infinera’s Offers to Meet and Confer Were Not Merely Proper, But Specifically Encouraged by Rule 37 In its Responses to Request Nos. 16, 25, 63, and 64, Infinera explained its specific objections and then stated that it was “willing to meet and confer to discuss the scope of this request.” (Dkt. 34-2). Plaintiff now argues that responses suggesting the parties meet and confer in an attempt to resolve any disputes are improper, allegedly on the basis that Infinera’s objections fail to comply with Rule 34(b)(2)(B)&(C)). (Mot. at 9). As stated previously, Infinera’s specific objections 3 In footnote 8, Plaintiff argues that Defendant’s Specific Objections are also improper, yet the two examples it provides (Infinera’s refusal to produce “all documents” related to a topic rather than just responsive documents, and Infinera’s objection to a Request as premature) are “stated with specificity” pursuant to Rule 34. Case 8:17-cv-00548-AG-JPR Document 35 Filed 02/01/18 Page 21 of 24 Page ID #:590 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -18- DEFENDANT INFINERA’S OPPOSITION TO PLAINTIFF’S MOTION TO COMPEL RESPONSES TO PLAINTIFF’S FIRST SET OF REQUESTS FOR PRODUCTION (NOS. 1-82) comply with Fed. R. Civ. P. 34(b)(2)(B) and (C) and provide the specific grounds upon which Defendant is tailoring its searches. For these particular Requests, Infinera believed that a meet and confer could assist with resolving at least in part both the scope of these objections and any disputes the parties might have on the appropriate scope of production. Plaintiff’s claim that it is inappropriate to respond to a request with the notation that the parties should meet and confer regarding its scope again reflects Core Optical’s ultimatum approach in violation of Rule 37. The Federal Rules and Civil local rules specifically encourage parties to discuss potential discovery disputes in an attempt to resolve them. In fact the meet and confer process is required by Rule 37 and Local Rule 37, yet Plaintiff has chosen not to participate. F. Infinera’s Typographical Errors in Responding to Plaintiff’s 82 Requests Do Not Justify Granting Plaintiff’s Motion Plaintiff identifies several instances where Infinera’s Responses contain inadvertent typographical errors, then portrays this as somehow intentional and nefarious. (Mot. at 10-12). While inadvertent mistakes can certainly happen in a 100- plus page document responding to over 80 document requests, none of these errors should have caused Plaintiff any real confusion. Had Plaintiff agreed to a good faith meet and confer process pursuant to Local Rule 37-1, Infinera could have clarified or explained each of these minor errors and spared the Court the hassle of dealing with a dispute over typographical errors. Plaintiff of course cites no authority holding that typos require striking otherwise valid objections and responses. III. SANCTIONS SHOULD BE IMPOSED AGAINST CORE OPTICAL FOR VIOLATIONS OF LOCAL RULE 37 Core Optical’s request for sanctions should be denied, and Infinera’s request for sanctions should be granted. Infinera has acted diligently, and invited Plaintiff on multiple occasions to resolve their discovery disputes without court involvement, only to be rebuffed in the meet and confer process. Instead, Plaintiff has elected to rush to Case 8:17-cv-00548-AG-JPR Document 35 Filed 02/01/18 Page 22 of 24 Page ID #:591 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -19- DEFENDANT INFINERA’S OPPOSITION TO PLAINTIFF’S MOTION TO COMPEL RESPONSES TO PLAINTIFF’S FIRST SET OF REQUESTS FOR PRODUCTION (NOS. 1-82) motion practice without any real effort of avoiding involvement of the Court. Infinera served its discovery responses on December 6, 2017, and by December 19 Plaintiff was already threatening n “intended” a motion to compel. Infinera issued a lengthy response to Plaintiff’s demand letter on January 5, 2017, but Plaintiff never responded. Instead, Core Optical waited a little over two weeks—during which time Infinera made its second document production, and prior to a further promised production—to file this meritless Motion to Compel. Infinera respectfully requests that the Court issue monetary sanctions against Core Optical for its violation of Rule 37. Core Optical’s demand letters on December 19, its complete refusal to meet and confer after January 2, and its disregard of Infinera’s January 5 response, including the multiple requests to meet and confer represent bad faith in violation of Local Rule 37-1 and this Court’s orders. Moreover, Core Optical’s refusal to prepare a joint stipulation represents a violation of Local Rule 37-2. This Court has the authority under Local Rule 83–7 to impose a sanction for violating a local rule that is appropriate under the circumstances, authority under Local Rule 37-4 to impose sanctions for failure to comply with or cooperate in the procedures of Local Rule 37, and authority under Federal Rule of Civil Procedure 37(a)(5)(B) to issue monetary sanctions where a discovery motion is denied. Infinera seeks the reasonable costs and attorneys’ fees it has incurred (and will incur) in connection with the present motion. Infinera will provide support for its requested fees and costs, if necessary, to the Court upon request. Case 8:17-cv-00548-AG-JPR Document 35 Filed 02/01/18 Page 23 of 24 Page ID #:592 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -20- DEFENDANT INFINERA’S OPPOSITION TO PLAINTIFF’S MOTION TO COMPEL RESPONSES TO PLAINTIFF’S FIRST SET OF REQUESTS FOR PRODUCTION (NOS. 1-82) Conclusion For the foregoing reasons, Infinera respectfully requests that the Court deny and/or strike Core Optical’s Motion to Compel. Infinera also respectfully requests that the Court deny Core Optical’s request for sanctions, and instead grant Infinera’s request for sanctions. DATED: February 1, 2018 QUINN EMANUEL URQUHART & SULLIVAN, LLP By /s/ Kevin P.B. Johnson Kevin P.B. Johnson Attorneys for Infinera Corp. Case 8:17-cv-00548-AG-JPR Document 35 Filed 02/01/18 Page 24 of 24 Page ID #:593